Construction Bulletin

UPDATED: Kentucky Publishes Revised Minimum Requirements and Additional Guidance for Construction Businesses to Re-open and Remain Open

May 13, 2020

The construction industry was identified as a life-sustaining business and permitted to continue operations during the beginning stages of the COVID-19 pandemic in Kentucky. At that time, the construction industry was instructed to follow all CDC recommendations while conducting business.

Then, as previously discussed in our May 8, 2020 post, the state published minimum requirements under the “Health at Work Phase 1 Reopening” that all businesses must implement by May 11, 2020 to protect the health and safety of their employees and customers. The minimum requirements for all businesses were in addition to specific requirements that certain industry sectors, which included the construction industry, must implement.

On the eve of the May 11 re-opening of numerous business sectors, the state published revised requirements that all businesses must implement and also provided additional employer guidance on employee health screenings, temperature checks, contact tracing, universal masking, and employee COVID-19 testing plans. The updated requirements and guidance were published in a May 11, 2020 Order issued by Eric C. Friedlander, the Secretary for the Cabinet for Health and Family Services.

Below is a chart of the updated minimum requirements and guidance that all Kentucky businesses must implement in order to re-open and remain open. A copy of the Secretary Friedlander’s Order containing the revised requirements and additional guidance for all businesses can be found here.

Requirements for all businesses:

Continue to telework to the greatest extent practicable.	Phased return to work, including policies for employees who are not able to come into work due to illness, taking care of family members, or lack of childcare options.
Enforce social distancing (at least 6’ physical distance) for those that cannot telework unless closer interaction is absolutely required to perform job duties.	Limit face-to-face interactions with each other and customers, using telephone and internet to conduct meetings to the greatest extent practicable.
Ensure to the greatest extent practicable that employees and others at work wear a cloth mask unless: (i) wearing mask would create a serious health or safety hazard, (ii) working alone in enclosed space; or (iii) working alone in an area with more than 6’ of social distancing. (“Universal Employee Masks”)	Sanitize frequently touched areas and surfaces in accordance with CDC guidelines. Greater measures must be implemented for contaminated areas such as immediately restricting access and posting signage. Any contaminated area should be off-limits to all but essential personnel for at least 24 hours.
Entities may also encourage customers to wear masks and can refuse to serve any customer who is not wearing a mask.	Require employees to undergo daily temperature and health checks. They can be self-administered at home by the employee or by the employer prior to workplace entry. *(See pages 6-7 of the Order for specific requirements related to daily employee temperature/health screenings.)**
Ensure employees wear gloves if their job duties involve touching items touched by others and ensure that the gloves are regularly replaced. Review and follow CDC, OSHA, and other applicable federal guidelines on the use of gloves.	Ensure that any employee with COVID-19 symptoms (as identified by the CDC) is tested by a health care provider within 36 hours and immediately notify the local public health department of an employee positive test.
Businesses must supply hand sanitizer (60% alcohol content or higher) for employees and customers and encourage routine and consistent hand washing.	Make special accommodations for employees and customers at higher risk for severe illness.
Restrict usage of common areas such as lobbies, waiting rooms, break rooms, smoking areas, lunch rooms, and concession areas to maximize social distancing and reduce congregating.	Designate a “Healthy at Work” officer responsible for the business’s compliance with guidance.
Entities must be prepared to assist public health officials if an employee tests positive or is exposed to COVID-19 – this includes providing the employee’s work schedule, workstation, hours or shifts worked, when employee was potentially exposed, and contact information of other employees exposed. *(See page 8 of the Order for specific protocols for complying with contact notification requirements.)**	Educate and train employees regarding the Healthy at Work protocols. Training must be provided during scheduled work times at no cost to the employee.

In addition to the revised requirements for all businesses published in Secretary Friedlander’s May 11, 2020 Order, the state issued “Version 1.1” of the requirements specific to Kentucky construction businesses. The construction specific requirements must be implemented in addition to the revised minimum requirements for all businesses set forth above. It appears that the only substantive changes to the requirements specific to the construction industry is a clarification that an employee does not need to wear a face covering if he or she is assigned to a work area with more than 6’ of social distancing. A copy of the state’s revised publication setting forth the full list of construction business required protocols can be found here.

In addition to the general requirements for all businesses and the industry-specific requirements for construction businesses, the “office-based business” requirements set forth below apply to the corporate office-setting of construction businesses. A copy of the state’s publication setting forth the full list of office-based business protocols can be found here.

Office-based business requirements:

Conduct business via phone or internet to the greatest extent practicable. Employees should continue teleworking if able.	Modify office traffic flow to minimize contacts between employees.
Ensure that no more than 50% of employees are physically present in the office on any given day.	Ensure offices and workstations are properly cleaned and ventilated.
Ensure employees wear face masks for any interactions between co-workers or while in common travel areas of the office.	Encourage employees to frequently wash hands or use hand sanitizer, which should be provided by the business.
Employees are not required to wear face masks while alone in personal offices or if doing so would pose a serious threat to their health or safety.	Ensure that appropriate signage is posted throughout the office space to inform employees and customers about good hygiene and new office practices.
Ensure employees use digital files rather than paper formats to the greatest extent practicable.	To the greatest extent practicable, implement hours where service can be safely provided to persons at higher risk for severe illness per CDC guidelines.
If in-person customer meetings cannot be avoided, employees must wear face masks and remain 6’ from the customer.

Attorneys

K. Brad Oakley